BILL ANALYSIS �
AB 765
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Date of Hearing: April 9, 2013
Counsel: Sandy Uribe
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 765 (Ammiano) - As Amended: March 19, 2013
SUMMARY : Prohibits imposition of the upper term of imprisonment
unless aggravating factors are found to be true by the finder of
fact. Specifically, this bill :
1)Makes a legislative declaration that, to ensure
proportionality in sentencing, upper terms should be reserved
for individual cases in which aggravating facts exist and have
been proven to be true.
2)Provides that the court may not impose an upper term based on
aggravating facts unless the facts were first presented to the
fact-finder and the fact-finder found the facts to be true.
3)Requires the court to state on the record at the time of
sentencing the specific facts in aggravation relied upon to
impose an upper term.
EXISTING LAW :
1)Declares that the purpose of imprisonment for crime is
punishment; that this purpose is best served by terms
proportionate to the seriousness of the offense with provision
for uniformity in the sentences of offenders committing the
same offense under similar circumstances; and that the
elimination of disparity, and the provision of uniformity, of
sentences can best be achieved by determinate sentences fixed
by statute in proportion to the seriousness of the offense, as
determined by the Legislature, to be imposed by the court with
specified discretion. [Penal Code Section 1170(a)(1).]
2)Provides that when a judgment of imprisonment is to be imposed
and the statute specifies three possible terms, the choice of
the appropriate term shall rest within the sound discretion of
the court. [Penal Code Section 1170(b).]
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3)Provides that when a sentencing enhancement specifies three
possible terms, the choice of the appropriate term shall rest
within the sound discretion of the court. [Penal Code Section
1170.1(d).]
4)Provides that sentencing choices requiring a statement of a
reason include "[s]electing one of the three authorized prison
terms referred to in section 1170(b) for either an offense or
an enhancement." [California Rules of Court, Rule
4.406(b)(4).]
5)Requires the sentencing judge to consider relevant criteria
enumerated in the Rules of Court. (California Rules of Court,
Rule 4.409.)
6)Provides that, in exercising discretion to select one of the
three authorized prison terms referred to in section 1170(b),
"the sentencing judge may consider circumstances in
aggravation or mitigation, and any other factor reasonably
related to the sentencing decision. The relevant
circumstances may be obtained from the case record, the
probation officer's report, other reports and statements
properly received, statements in aggravation or mitigation,
and any evidence introduced at the sentencing hearing."
[California Rules of Court, Rule 4.420(b).]
7)Prohibits the sentencing court from using a fact charged and
found as an enhancement as a reason for imposing the upper
term unless the court exercises its discretion to strike the
punishment for the enhancement. [California Rules of Court,
Rule 4.420(c).]
8)Prohibits the sentencing court from using a fact that is an
element of the crime to impose a greater term. [California
Rules of Court, Rule 4.420(d).]
9)Enumerates circumstances in aggravation, relating both to the
crime and to the defendant, as specified. (California Rules of
Court, Rule 4.421.)
10)Enumerates circumstances in mitigation, relating both to the
crime and to the defendant, as specified. (California Rules
of Court, Rule 4.423.)
FISCAL EFFECT : Unknown
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COMMENTS :
1)Author's Statement : According to the author, "Following
conviction or upon a plea, a judge can unilaterally find that
there are aggravating circumstances and impose the upper term.
While it is appropriate for a judge to state his or her reason
for imposing a sentence that can be more than twice the length
of the lower sentence, the aggravating factors should be true,
and the only way to determine this is to put the facts before
a jury or independent factfinder which the U.S. Supreme Court
declared in its 2007 decision.
"This small policy change will instill a great sense of fairness
in our judicial system. The sponsors and I want to hold people
who break the law accountable for their actions, and if a jury
or independent factfinder finds that there are true factors in
aggravation, then the highest available sentence should be
imposed. If not, judges need to follow the law and impose the
middle term unless there are factors that have actually been
found to be true."
2)Background: The Sixth Amendment right to a jury applies to
any factual finding, other than that of a prior conviction,
necessary to warrant any sentence beyond the presumptive
maximum. [Apprendi v. New Jersey (2000) 530 U.S. 466, 490;
Blakely v. Washington (2004) 524 U.S. 296, 301, 303-04.]
In Cunningham v. California (2007) 549 U.S. 270, the United
States Supreme Court held California's Determinate Sentencing
Law (DSL) violated a defendant's right to trial by jury by
placing sentence-elevating fact finding within the judge's
province. (Id. at p. 274.) The DSL authorized the court to
increase the defendant's sentence by finding facts not
reflected in the jury verdict. Specifically, the trial judge
could find factors in aggravation by a preponderance of
evidence to increase the offender's sentence from the
presumptive middle term to the upper term and, as such, was
constitutionally flawed. The Court stated, "Because the DSL
authorizes the judge, not the jury, to find the facts
permitting an upper term sentence, the sentence cannot
withstand measurement against our Sixth Amendment precedent."
(Id. at p. 293.)
The Supreme Court provided direction as to what steps the
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Legislature could take to address the constitutional
infirmities of the DSL:
"As to the adjustment of California's sentencing system in light
of our decision, the ball . . . lies in [California's] court.
We note that several States have modified their systems in
the wake of Apprendi and Blakely to retain determinate
sentencing. They have done so by calling upon the jury -
either at trial or in a separate sentencing proceeding - to
find any fact necessary to the imposition of an elevated
sentence. As earlier noted, California already employs juries
in this manner to determine statutory sentencing enhancements.
Other States have chosen to permit judges genuinely to
exercise broad discretion . . . within a statutory range,
which, everyone agrees, encounters no Sixth Amendment shoal.
California may follow the paths taken by its sister States or
otherwise alter its system, so long as the State observes
Sixth Amendment limitations declared in this Court's
decisions." (Cunningham, supra, 549 U.S. at pp. 293-294.)
Following Cunningham, the Legislature amended the DSL,
specifically Penal Code sections 1170 and 1170.2, to make the
choice of lower, middle, or upper prison terms one within the
sound discretion of the court. [See SB 40 (Romero) - Chapter
3, Statutes of 2007.] This approach was embraced by the
California Supreme Court in People v. Sandoval (2007) 41
Cal.4th 825, 843-852. The procedure removes the mandatory
middle term and the requirement of weighing aggravation
against mitigation before imposition of the upper term. Now,
the sentencing court is permitted to impose any of the three
terms in its discretion, and need only state reasons for the
decision so that it will be subject to appellate review for
abuse of discretion. (Id. at pp. 843, 847.)
3)Is the Current Method Still Constitutionally Infirm ? The
United States Supreme Court "has repeatedly held that, under
the Sixth Amendment, any fact that exposes a defendant to a
greater potential sentence must be found by a jury, not a
judge, and established beyond a reasonable doubt, not merely
by a preponderance of the evidence." (Cunningham v.
California, supra, 549 U.S. at 281.) The Court has with
increasing frequency in recent years insisted on the jury's
essential role in resolving factual issues related to
sentencing. [See e.g. Southern Union Co. v. United States
(2012) 132 S.Ct. 2344 (The rule of Apprendi applies to the
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imposition of criminal fines.)] In fact, the Court is once
again considering the scope of the Sixth Amendment in the
sentencing context in a case involving mandatory minimum
sentencing schemes. (See Alleyne v. United States, Docket No.
11-9335.)
Perhaps the most important sentencing label that must be
scrutinized in assessing a sentencing determination for
Apprendi/Blakely error is "judicial discretion." The Supreme
Court stated in Apprendi that it was not eliminating judicial
discretion over sentencing. (Apprendi, supra, 530 U.S. at p.
482.) However, in Blakely, the Court also held that the
exercise of judicial discretion is unconstitutional if it
relies on a fact not found true by the jury, in whose absence
the state's sentencing laws would require a lower sentence.
(Blakely, supra, 124 S.Ct. at pp. 2537-2538.) Simply because
a state's sentencing laws say that they are giving a judge
discretion, even broad discretion, to make a particular
determination affecting the defendant's sentence does not mean
that the exercise of that discretion is immune from an
Apprendi/Blakely challenge. Unless the state has given the
sentencing court unfettered discretion to do whatever it wants
to in making a particular determination that affects the
defendant's sentence, the exercise of that discretion will
potentially be susceptible to such a challenge.
Because Penal Code Section 1170 continues to require judicial
findings as a predicate to the imposition of an aggravated
term, it arguably still violates the Sixth Amendment. While
the trial court "will not be required to cite 'facts' that
support its decision or to weigh aggravating and mitigating
circumstances" [People v. Sandoval, supra, 41 Cal.4th at pp.
846-847, citing � 1170, subd. (c)], as adopted by the
California Supreme Court, Penal Code Section 1170 requires the
judge to enter "reasons" supporting the exercise of his or her
sentencing discretion on the record. [Id. at p. 844; see also
Penal Code Section 1170(b).] Those reasons remain governed by
the California Rules of Court. [People v. Sandoval, supra, 41
Cal.4th at 844; Penal Code Section 1170.3(a)(2).] And the
Rules of Court, which lay out the permissible bases for trial
courts to impose an upper or lower term, have not changed.
Rule 4.421, listing circumstances in aggravation, distinguishes
between factors relating to the crime and factors relating to
the defendant. The aggravating factors relating to the crime
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are: "(1) The crime involved great violence, great bodily
harm, threat of great bodily harm, or other acts disclosing a
high degree of cruelty, viciousness, or callousness; (2) The
defendant was armed with or used a weapon at the time of the
commission of the crime; (3) The victim was particularly
vulnerable; (4) The defendant induced others to participate in
the commission of the crime or occupied a position of
leadership or dominance of other participants in its
commission; (5) The defendant induced a minor to commit or
assist in the commission of the crime; (6) The defendant
threatened witnesses, unlawfully prevented or dissuaded
witnesses from testifying, suborned perjury, or in any other
way illegally interfered with the judicial process; (7) The
defendant was convicted of other crimes for which consecutive
sentences could have been imposed but for which concurrent
sentences are being imposed; (8) The manner in which the crime
was carried out indicates planning, sophistication, or
professionalism; (9) The crime involved an attempted or actual
taking or damage of great monetary value; (10) The crime
involved a large quantity of contraband; and (11) The
defendant took advantage of a position of trust or confidence
to commit the offense."
Many of these offense factors involve conduct that is the same
conduct proscribed by various sentence enhancements which must
be charged and proven to a jury. For example, that the crime
involved great violence or bodily harm is substantially
similar to the great bodily injury enhancement (Penal Code
Section 12022.7); that the defendant was armed with or used a
weapon encompasses the same conduct as an arming enhancement
(Penal Code Section 12022); that the crime involved a taking
or damage of great monetary value mirrors the value-of-loss
enhancement (Penal Code Section 12022.6); and that the crime
involved a large quantity of contraband is akin to the weight
enhancement for controlled substance violations. (Health &
Safety Code Section 11370.4.)
Moreover, under the Rules of Court, it remains the case that
"[a] fact that is an element of the crime may not be used to
impose a greater term." [Cal. Rules of Court, Rule 4.420(d).]
Similarly, Penal Code Section 1170(b) continues to provide
that "the court may not impose an upper term by using the fact
of any enhancement upon which sentence is imposed under any
provision of law."
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It really should not matter that the factors outlined in the
Rules of Court are now called "reasons" rather than "facts."
"If a State makes an increase in a defendant's authorized
punishment contingent on the finding of a fact, that fact - no
matter how the State labels it - must be found by a jury
beyond a reasonable doubt." . . . "[T]he characterization of
a fact or circumstance as an 'element' or a 'sentencing
factor' is not determinative of the question 'who decides,'
judge or jury," . . . . (United States v. Booker, supra, 543
U.S. at 231.) Since under reformed Penal Code Section 1170,
it is still the case that an upper-term sentence must be based
on factors in the Rules of Court, arguably the sentencing
scheme still violates a defendant's Sixth Amendment rights, at
least as to offense-based factors relied upon to impose an
upper-term sentence.
4)Would Jury Trials on Aggravating Factors Burden the Criminal
Justice System ? California already provides a statutory
requirement of a jury trial for many enhancing factors. For
example, to subject a defendant to the punishment prescribed
by Penal Code Section 667.61, a jury must find the underlying
facts such as great bodily injury, mayhem or torture, the use
of a deadly weapon, tying or binding, or administration of a
controlled substance by force. [Penal Code Section 667.61(d),
(e) and (i).] In a "Three-Strikes" case, a defendant's prior
conviction must be pleaded and proved. [Penal Code Section
1170.12(a).] The facts that permit enhancements of
punishments for violating various drug laws must also be
pleaded and proved. [See e.g. Health and Safety Code Sections
11353.1(b); 11353.4(c); 11353.6(e).]
Moreover, in Blakely, supra, 542 U.S. 296, the United States
Supreme Court acknowledged that a defendant could waive his
Sixth Amendment right and consent to judicial fact-finding
either as part of a plea-agreement or as part of a bifurcated
trial (Id., at p. 310.) As a practical matter, this
procedure is often utilized in California courtrooms. For
example, although a defendant has a statutory right to a trial
by jury on his prior convictions [Penal Code Section 1025;
People v. Kelii (1999) 21 Cal. 4th 452], defendants often
waive that right or admit the priors. Finally, it should also
be noted that most criminal proceedings are resolved by plea.
Therefore, while jury trial on aggravating factors would
impact the judicial system, not all cases would result in
these trials.
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5)Solutions from Other States : Several other states have faced
the same sentencing dilemma as California. Washington was in
the very same position as California in that Washington had
its sentencing structure ruled unconstitutional. (Blakely,
supra, 542 U.S. at pp. 305-306.) In response, the Washington
Legislature created a bifurcated trial process in which a jury
would decide certain aggravating factors after the jury had
found the defendant guilty. (Cunningham, supra, 549 U.S. at
294, fn. 17.) In addition to Washington, several other states
have adopted a bifurcated trial model: Alaska, Arizona,
Kansas, Minnesota, North Carolina, Oregon and Colorado.
[Ibid.; see also Stemen & Wilhelm, Finding the Jury: State
Legislative Responses to Blakely v. Washington, 18 Fed.
Sentencing Rptr. 7 (Oct. 2005) (majority of affected states
have retained determinate sentencing systems).]
6)Argument in Support : According to the California Attorneys
for Criminal Justice , the sponsor of this bill, "Current law
allows for a judge to choose one of three possible terms when
a judgment is imposed: lower, middle, and upper. Until 2007,
California required the granting of the middle term unless
there are factors of aggravation or mitigation to enhance or
reduce the punishment of a crime. However, the U.S. Supreme
Court ruled the California statute unconstitutional because it
failed to provide the right of a jury to determine whether the
aggravating factors were true beyond a reasonable doubt. The
California statute essentially eliminates a person's right to
confront the witnesses against them by allowing the judge to
unilaterally impose an enhancement.
"AB 765 would rectify this elimination of this essential right
at trial. This bill prevents a judge from unilaterally
imposing an extended prison sentence based on the facts that a
jury never sees or finds to be true. The goal of this bill
still requires people who break the law to be accountable;
nonetheless, the decision to impose an enhancement to a
person's term should be determined by the jury or an
independent factfinder and not the judge unilaterally.
"AB 765 is a policy change that will encourage fairness and
consistency in our judicial system."
7)Argument in Opposition : The Los Angeles District Attorney's
Office states, "AB 765 is unnecessary. Current law is fair to
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defendants and rarely results in maximum prison terms. In the
past five years, judges have given minimum or medium terms in
over 83% of all cases. (Source: Department of Corrections
and Rehabilitation Report on New Admissions).
"AB 765 would generate added costs for our county and our
court system for deputy district attorneys, public defenders,
judges, and related personnel to handle extensive jury trials.
Moreover, in many cases defendants would have the right to
bifurcated (separate) jury trials on the issues of guilt and
sentencing (similar to a death penalty case). This additional
cost of these double jury trials would put a hole in our court
budgets at the worst possible time.
"The current system works and is fair to both the accused and
the People of California. Given the severity the budget
crisis in California's courts, this is not the time to
experiment with a new sentencing system.
"California's current sentencing procedures were established
by Senate Bill 40 (Romero) of 2007 and Senate Bill 150
(Wright) of 2009. This legislation was in response to a
United States Supreme Court decision that held California's
sentencing law to be unconstitutional because the law at that
time required judges to make factual findings in order to
impose a maximum sentence. Cunningham v. California (2007)
549 U.S. 270. The Supreme Court stated that the above problem
could be corrected either by providing for a jury trial on the
sentencing issues or by giving judges the discretion to impose
the higher prison term without additional findings of fact.
"SB 40 and SB 150 corrected the constitutional problem by
giving judges discretion to impose a minimum, middle, or
maximum prison term, without additional factual findings.
Judges are, however, required to state the reasons for their
decision on the record. The approach to sentencing
established by this legislation was accepted and embraced by
the California Supreme Court in People v. Sandoval (2007) 41
Cal.4th 843-52. ?
"AB 765 also goes beyond Cunningham in providing for a right
to a jury trial on aggravating factors that the U.S. Supreme
Court has determined need not be decided by a jury. For
example, prior convictions, prior prison terms, or the
defendant's probation or parole status at the time of the
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charged crime are aggravating factors that the Supreme Court
has determined may be decided by a judge rather than a jury.
People v. Towne (2008) 44 Cal.4th 63. Since the facts of a
defendant's criminal record are routine determinations of the
court, it is unclear why AB 765 would extend the right to a
jury trial to these determinations."
8)Related Legislation : SB 463 (Pavley) extends the sunset
provision on Penal Code Section 1170 to January 1, 2017. SB
463 is pending hearing by the Senate Appropriations Committee.
9)Prior Legislation :
a) AB 520 (Ammiano), of the 2011-12 Legislative Session,
was identical to the provisions of this bill. AB 520 was
amended to a different matter.
b) SB 576 (Calderon), Chapter, 361, Statutes of 2011,
extended the sunset provisions on Penal Code Section 1170
to January 1, 2014.
c) AB 2263 (Yamada), Chapter 256, Statutes of 2010,
extended the sunset provisions on Penal Code Section 1170
to January 1, 2012.
d) SB 150 (Wright), Chapter 171, Statutes of 2009,
eliminated the presumption of the middle term relating to
sentencing enhancements found in Penal Code Section
1170.1(d).
e) SB 1701 (Romero), Chapter 416, Statutes of 2008,
extended to January1, 2011, the provisions of SB 40 which
were originally due to sunset on January 1, 2009.
f) SB 40 (Romero), Chapter 3, Statutes of 2007, amended
California's DSL to eliminate the presumption for the
middle term and to state that where a court may impose a
lower, middle or upper term in sentencing a defendant, the
choice of appropriate term shall be left to the discretion
of the court.
REGISTERED SUPPORT / OPPOSITION :
Support
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California Attorneys for Criminal Justice (Sponsor)
California Public Defenders Association
American Civil Liberties Union of California
Legal Services for Prisoners with Children
Opposition
California District Attorneys Association
Los Angeles District Attorney's Office
Analysis Prepared by : Sandy Uribe / PUB. S. / (916) 319-3744